Basically, applicants would perform their own searches and submit the prior art they found to the office. The office would examine for 102/103 exclusively in view of the references provided. Granted patents would have a presumption of validity over only the references considered during examination.

Such a system benefits applicants as 1) it would cost much less and 2) would give applicants control over examination quality. The strength of a grant would be proportional to the quality of the search, so the public would be better off. And PTO management would be able to keep their hands off management techniques (i.e., X hours for considering Y references, or else we fire you).

The biggest drawback (and it is not a small one) is that such a system FAVORS a “Sport or Kings’s” better for the entrenched and established entities regime.

Disruptive innovation would suffer.

The overall economics of the patent system would suffer.

Those who have studied innovation have recognized that an important driver of the “American Experiment” that catapulted this country from a back-water violator of European patent rights to the greatest innovating country that ever existed was the purposefully staying away from “Sport of Kings” pricing mechanisms.

Apple is an unabashed willful patent infringer. The threat of patent damages, even trebled, does not deter their conduct. Willful patent infringement is a routine part of Apple’s business now. How sad.

Paper-writer Milan Voet takes as his subject the “EU Patent”. What’s that then? No such thing, Milan. The EPC is not an EU thing at all.

But nevertheless, I must read his Paper on NPE’s and Loser Pays costs awards. In telecoms, in Europe, such costs awards have not completely stopped NPE’s from launching suits. In general though, there is not much NPE-led patent litigation and that’s probably because of the Loser Pays costs regime that one finds in the leading patent litigation forums (fora?) in Europe. Bit of a N0 Br5in3r really, I should have thought.

The Voet paper appears to be a classic case of “Academia Regurge” as the authors appears to be a law school student and STARTS with a presumption (stated as fact) that is a fallacy of the “0h N0es Tr011s” mantra:

“Frivolous litigation over patent issues poses a significant barrier to innovation, especially in United States where so-called “patent trolls” or PAEs are responsible for most legal conflicts on patent issues.”

“The research found that in the United States, women were involved in 10% of all patent applications between 1998 and 2017. It might be surprising to hear that the country with the highest share of female involvement during that period was actually Togo where the share was 57.1%. It was followed by Uganda (44.55%) and Latvia (39.05%).”

“We find that when it is practical to increase the rewards from innovation by extending patent length, the standards of proof for non-obviousness should be high.”

I wonder, how does one even begin, to set about proving something to be non-obvious? Perhaps by cross-examining hired gun technical “experts” who declare that it wasn’t obvious to them and so, by inference, not obvious to the PHOSITA either. Is this a helpful way to move forward, in patent validity disputes?

Germany has two sorts of patents. Full ones last 20 years. Petty ones last for 10. It was long thought that the full patents should require a higher level of non-obviousness than for petty patents. But that thinking has been abandoned because obviousness is a binary Yes or No question. The claimed subject matter is obvious, or it is not. Basta!

A 20 year patent issues only after ex parte examination in the PTO to determine whether the application meets all of the requirements for patentability. It is a so-called “examined right”. It has a degree of presumption of validity. In contrast, the 10 year patent issues within 3 months or so of filing, as an “unexamined right” and is treated as such by any court asked for relief from infringement.

Horses for Courses. Pharma needs powerful rights at the end of 20 years. Other industries need a Grant Certificate to wave around, from the date of launch of a product that might not have the legs to be competitive for as much as 10 years.

Even better then than the comparison to mere length of term kept active with maintenance payments. It’s as if Germany is running a dual mode patent and registration system.

I do wonder if there is data/analysis showing any proclivity or relative cost/benefit between the dual modes.

If the societal and innovator/innovation costs and benefits are at all comparable, then one has to consider the cost of administrative “tax” borne entirely by innovators (a multi-Billion dollar question here in the States).

If the purpose of the patent system is to promote the progress of useful arts, thereby to enhance the general welfare and help future prosperity of the nation, should the taxpayer contribute to the costs of any such system of national defence?

If so, which parts of the system? Overhead costs in the PTO, perhaps? Or in the civil courts? Or both? Or neither?

I believe that the general view in the US (and the reason why the USPTO is entirely funded BY innovators seeking patent protection) is that ANY such legal effect is sought on an entirely voluntary basis.

However, the notion that the public “at large” somehow must be involved carries with it a bit of a misnomer — along the lines of error as recently seen in our Oil States decision (and notably following a conversation with Paul Cole — an item that is contrary to the pre-Part I General Provisions of the TRIPS accord — in particular, the statement of “Recognizing that intellectual property rights are private rights.”).

With this type of understanding of optionality AND Private Rights aspects, I would find it incongruent to have the mechanism be funded by general taxpayers who are NOT a direct part of the Quid Pro Quo exchange.

Of course, this “taxpayer” angle is a bit of a tangent to the point above as to any comparison between the modes of registration system and (for US, current) full legal property right system.

Perhaps a different slant on “taxpayer” funding might be in line for those who view Oil States to have been properly decided. By this I mean that by “embracing” the “Oil States” decision – and carrying through on the consequences of the patent right being MORE a “Public Franchise” – that the notions of Franchisor/Franchisee be brought to bear. One such notion is that enforcing the franchise right obtained from the Franchisor should be the responsibility (both full ardor and cost) OF the Franchisor. That is, in addition to having a whole post-grant system geared to removing granted patent rights, we should have a whole system of the USPTO that seeks out and punishes transgressors. As the “right” (under Oil States) is one merely of a temporary item remaining under the control of the FranchisOR, why should the FranchisEE be the one that has to seek out and enforce the property right?

Of course, THAT part of the legal understanding of “Franchise” is ‘conveniently’ NOT remembered in the current climate of anti-patentism.

Now, if you are advocating for “general taxpayer participation,” would you be entertaining that type of enhancing of the patent system?